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Court Of Appeals Reverses NLRB On Union Email Solicitations

Labor and Employment Alert07/09/09 David B. Kern

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As we previously reported, in late 2007 the NLRB issued its decision in Guard Publishing Company, d/b/a Register-Guard, 351 NLRB 1110 (2007), holding that an employer policy could lawfully prohibit employee emails that solicit support for outside organizations, including unions. We noted that the key to determining whether a policy was lawful was the wording of the prohibition. In Register-Guard, the employer newspaper's policy prohibited "non-job-related solicitations," including those on behalf of non-charitable "outside organizations." Despite the policy's prohibition, the employer permitted employees to send personal emails, including offers to sell personal items, but there was no evidence that employees had solicited for outside organizations until an employee, who also was the president of the union, sent two emails from her union office to her co-workers, encouraging them to support the union. The employee received a written warning for violating the policy. The NLRB held that her employer lawfully disciplined her for sending the two emails because there was no evidence of discriminatory enforcement in the form of allowing email solicitations in support of other non-charitable outside organizations.

On July 7, 2009, the United States Court of Appeals for the District of Columbia overturned the Board's ruling on this aspect of the case. The Court held that the Board's ruling, based on the distinction between solicitations on behalf of outside organizations and solicitations on behalf of an individual, was an after-the-fact justification for the Company's actions. The Court noted that the employer policy at issue actually made no distinction between solicitations for groups and solicitations for individuals. Instead, it stated only that solicitation for "outside organizations" was one example of the broader, forbidden activity of sending "non-job-related solicitations." In light of the policy's language, the newspaper's practice of allowing individual for-sale "solicitations" constituted evidence that the employer discriminatorily enforced the policy when it disciplined the union president for sending two emails on behalf of the union.

Significantly, on appeal the union never challenged the Board's ruling in the first instance, that an employer can bar employees from using its email system for all non-job related solicitations; thus, that part of the Register-Guard holding remains intact, at least for the time being.

Whether this Court of Appeals signals the emergence of a shift in federal labor policy at the NLRB and Court of Appeals levels remains to be seen. However, Board member Wilma Leibman, who issued a strong dissent in Register-Guard, is now chairman of the NLRB, and two new NLRB appointees named by President Obama - both former union attorneys - are awaiting confirmation by the Senate. Many observers believe that the holding of Register-Guard will not withstand re-examination by an Obama Board and that a broad restriction on employees using their employer's email system for all non-job related solicitations will be in jeopardy when the question comes before a newly constituted Board.

In the meantime, employers may wish to re-examine their electronic communications policies to ensure that they are clearly drafted to achieve their intended goals, and employers should ensure that they are carefully and consistently enforcing those policies.